Dynegy Reaches Settlement With Shareholders
Dynegy has reached a comprehensive settlement agreement related to the shareholder litigation brought by the Regents of the University of California as a class action in the U.S. District Court in Houston.
In its lawsuit, the Regents alleged violation of securities laws primarily related to “Project Alpha,” a structured natural gas transaction entered into by the company in 2001. The class action included claims for damages on behalf of a class of purchasers of Dynegy Class A common stock during the class period of June 2001 to July 2002.
The settlement agreement, which is subject to federal court approval, provides for the following:
Two payments totaling $250 million will be made in 2005. An initial payment of $175 million will be made during the second quarter, followed by a second payment of $75 million upon federal court approval. The company expects approval during the second half of the year. Dynegy will also issue Class A common stock in the value of $68 million following court approval. The number of shares of Class A common stock will be determined based on a calculation using a volume weighted average stock price for Dynegy Class A common stock for 20 trading days ending today.
Thereafter, the recommendation for election of two new directors to the Board of Directors of Dynegy Inc. at the company’s 2006 annual shareholders’ meeting from a list of not less than five qualified candidates submitted by the Regents. The process for election of the new directors will be conducted in accordance with the normal processes previously established by Dynegy’s Corporate Governance and Nominating Committee for the election of new directors.
In addition, in a related court case brought in Texas District Court, two plaintiffs made similar claims to those in the class action litigation. Dynegy has agreed to settle the derivative litigation on the basis of corporate governance changes, many of which have been implemented since the claim was filed. The company has also agreed to pay related attorney fees and expenses in the amount of $5 million. This settlement is not included in the $468 million payment discussed above.
According to Bruce A. Williamson, Chairman, President and Chief Executive Officer of Dynegy Inc., “As with other elements of our self-restructuring, by entering into these settlement agreements we are taking responsibility for the resolution of issues associated with a past era for the company in order to put them behind us. These settlements represent the last significant legal impediments to the pursuit of growth opportunities for our Natural Gas Liquids and Power Generation businesses. With these matters resolved, management and the Board of Directors can concentrate fully on the future direction of our company to maximize value for shareholders.
“The financial impact of these settlements, along with liquidity for our business operations, can be accommodated through our available cash and bank lines,” he said. “These settlements are fair and equitable for all parties involved, including the company, our current investors and former investors who are members of the class.”
Williamson added, “Finally, from a governance perspective, we look forward to adding two new members to our Board of Directors. We are confident that the diversity of skills and contributions of the new directors will enhance our industry-leading corporate governance practices.”
Dynegy and various other parties settling the litigation do not admit to any liability by the company, its directors or officers. In addition, there were no findings of any violation of federal securities laws. The Regents were represented by Lerach Coughlin Stoia Geller Rudman & Robbins LLP. Dynegy was represented in the litigation by Haynes & Boone, LLP and in the settlement by Stonebridge International LLC and Hogan & Hartson L.L.P.
Dynegy will record a first quarter pre-tax charge of approximately $225 million (approximately $155 million after-tax) related to the settlements and associated legal expenses. While the settlements and expenses will impact the company’s 2005 GAAP earnings guidance estimate, they do not affect core business earnings. Management will provide updated guidance reflecting the impact of the settlements, as well as differences in current commodity and power prices from previously issued commodity forecasts, during the release of the company’s first quarter 2005 financial results on Monday, May 9, 2005.
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